Delegation of Regulatory Powers in a Mixed Polity

It is a common place of academic and political discourse that the EC/EU, being neither a parliamentary democracy nor a separation‐of‐powers system, must be a sui generis polity. Tocqueville reminds us that the pool of original and historically tested constitutional models is fairly limited. But however limited, it contains more than the two systems of rule found among today's democratic nation states. During the three centuries preceding the rise of monarchical absolutism in Europe, the prevalent constitutional arrangement was ‘mixed government’—a system characterised by the presence in the legislature of the territorial rulers and of the ‘estates’ representing the main social and political interests in the polity. This paper argues that this model is applicable to the EC, as shown by the isomorphism of the central tenets of the mixed polity and the three basic Community principles: institutional balance, institutional autonomy and loyal cooperation among European institutions and Member States. The model is then applied to gain a better understanding of the delegation problem. As is well known, a crucial normative obstacle to the delegation of regulatory powers to independent European agencies is the principle of institutional balance. By way of contrast, separation‐of‐powers has not prevented the US Congress from delegating extensive rule‐making powers to independent commissions and agencies. Comparison with the philosophy of mixed government explains this difference. The same philosophy suggests the direction of regulatory reform. The growing complexity of EC policy making should be matched by greater functional differentiation, and in particular by the explicit acknowledgement of an autonomous ‘regulatory estate’. At a time when the Commission aspires to become the sole European executive, as in a parliamentary system, it is particularly important to stress the importance of separating the regulatory function from general executive power. The notion of a regulatory estate is meant to emphasise this need.     

The enduring centrality of individual ministerial responsibility within the British constitution

Despite concerns regarding its practical utility the convention of individual ministerial responsibility remains central to any analysis of the British constitution. The convention forms the ‘buckle’ in the relationship between parliament and the executive. It is widely acknowledged that throughout the nineteenth and twentieth centuries the executive has gained the ascendancy in this relationship. Consequently, the enduring centrality of the convention rests not in its use by parliament as a tool with which to scrutinise the executive but, conversely, as a tool used by the executive to dismiss reform proposals that threaten its dominant position. This article reviews the way in which British government developed and particularly how this evolution gave primacy to a convention that contained mutually supportive yet contradictory strands. It then demonstrates the core argument of this article by examining two case studies ‐the introduction of freedom of information legislation and the incorporation of the European Convention on Human Rights. The article concludes by considering the wider implications of the continuing centrality of ministerial responsibility and the paradoxes and challenges it presents.     

Public policy inquiry and advice as an aspect of constitutional reform

This article presents for the first time an outline of a classified review of the many types (some 20) of public policy inquiry or review exercises used in British public affairs. They are mainly created by the government but are also increasingly promoted by private bodies hoping to influence government and the established specialist interests in a policy field by supplying free and authoritative information and recommendations. A brief commentary on each of these ‘decision advice processes’ (DAPs) draws out their changing profile and questions the democratic propriety of the executive itself now investigating or reviewing important public policy issues which were, until quite recently, unquestioningly given out by departments for external and (normally) independent‐minded commissions and committees of inquiry to study and recommend upon. The question of whether the current movement for constitutional reform should include the overall ‘decision advice process’ and place it on a more independent and authoritative basis is raised. A parliamentary, rather than (or as well as) an executive, basis for most official ‘DAPs’ is proposed, while the currently flourishing practice of charitable foundations, think‐tanks and established interest groups promoting unofficial DAPs for the information and guidance of the government, parliament and the public is endorsed.     

Resisting ‘progressive’ carceral expansion: lessons for abolitionists from anti-colonial resistance

This article documents a government-led strategy to more closely integrate policing with community-based ‘crime prevention’ programming in the city of Winnipeg, Manitoba, Canada. These initiatives have targeted neighborhoods with large Indigenous populations. In this article I illustrate how community-level conflicts over responses to ‘crime’ are also sites of settler colonial conflict, and how settler colonial governance is reproduced and resisted through the governance of crime. Interviews with politicians, policy-makers, bureaucrats in the crime prevention branch of the provincial government, and directors and employees at community-based organizations suggest that the pursuit of the government strategy of integrated crime prevention and suppression has been more a project of attempting to ‘manage’ urban Indigenous people than serve their interests. As a contribution to abolitionist thought and theory, this article profiles sites of conflict between community police and community-based organizations over definitions of the ‘crime’ problem in city-center Winnipeg. These examples highlight a kinship between carceral abolitionist and decolonial politics.     

Doing gang research in Canada: navigating a different kaleidoscope

Interest in youth gang activities in Canada has engendered an increasing engagement by government institutions and police departments of American ‘gang experts’ who supposedly have a long pedigree in dealing with this type of problem. I argue that: (a) considering the lingering contentions over the nature, structure, and organization of gangs generally, Canada does not stand to benefit significantly from the American ‘gang’ experience; and (b) the focus of contemporary American gang literature on minority youths helps to sustain the stereotype and control of racialized youths as the ‘poster boys’ of urban youth violence. This is in line with research showing that ‘expert’ knowledge has historically been used to support the ‘othering’ and control of marginalized populations. Canadian youth gang policy does not need to borrow from this model, as it will unnecessarily exacerbate racial tensions in the country.     

Committees and Legislative Strengthening: The Growing Influence of Committees in Ukraine's Legislative Process

The Ukrainian legislature is in the process of transforming from a ‘rubber stamp’ institution of the Soviet type into an ‘institution that matters’ in a new democratic state. The practice of democratic institution building in the post-Soviet countries presents multiple examples of powerful executives who gained dominance in legislative processes. What path has Ukraine taken and what can explain its specific characteristics? This article charts the growth of committees here as a marker of legislative institutionalisation in Ukraine. The study finds that Ukrainian legislative committees defy prevalent regional trends and, contrary to expectations, have asserted independent roles. It then discusses factors that may account for this unique regional development – the role of a dual executive structure and the Ukraine party system.     

Diplomacy at a Canadian Mine Site in Guatemala

This paper critically examines the Canadian government’s response to violent conflict at Canadian-owned extractive sites in Guatemala. Considering the trans/national-local context of a Canadian-U.S. owned silver mine in southeastern Guatemala, I piece together both the formal/overt and informal/banal ways that the Canadian government reneges on transparency related to government practice. To do this, I carry out a critical reading of hundreds of pages from Access to Information requests and email correspondence from Global Affairs Canada (GAC) and explore how Canada relates to and interacts with a Canadian mining company before, during and after a violent shooting at its Guatemalan project site. I argue that the Canadian embassy, and GAC’s regular communication and contact with Tahoe Resources and its subsidiary, Minera San Rafael, under the guise of ‘diplomatic relations’—and charity events—points to a particular form of state-corporate symbiosis which seems to ignore vital socio-political and historical context.     

‘Happiness again’: photographing and narrating the arrival of Hungarian child refugees and their families 1956–1957

Abstract

The Australian government has long been involved in creating, collecting and circulating photographs of newly arrived immigrants, displaced people and refugees. Many of these images have been used for internal and external promotional/propaganda purposes. In this article I use news reports and visual photographic material depicting Hungarian refugee children and their families, alongside an analysis of government agendas and communication strategies, to examine how these ‘new Australians’ were understood and presented to the nation. After the 1956 anti-Communist uprising in Hungary, just over 14,000 Hungarian refugees were resettled in Australia. The federal government specially sought out a number of ‘compassionate cases such as children’, and many groups and individuals within the host population offered support to care for what they imagined would be large numbers of orphaned and unaccompanied Hungarian children. These Hungarian refugees came to Australia in the context of increased government interest in public relations and publicity around immigration. A Public Relations director in the Department of Immigration was appointed in 1955 and a publicity section was also established as part of the Planning and Research Division. Discussions by the Immigration Planning Council during 1956 plainly stated that ‘business’ was now the driving force for immigration rather than ‘the “refugee” concept’. Tasman Heyes, the Secretary of the Department of Immigration, agreed but also felt that these two forces were and could be combined, pointing out that since 1951 Australia had received ‘international credit for contributing to the solution of an international problem’ by achieving the integration of these aims. This article examines how refugee children and families were positioned in relation to the fraught pairing of economic and humanitarian concerns, thus interrogating broader understandings of immigration, children and families within the Australian nation that are revealed in these moments of photographic capture and circulation.     

The One-System View and Dworkin’s Anti-Archimedean Eliminativism

Many of Dworkin’s interlocutors saw his ‘one-system view’, according to which law is a branch of morality, as a radical shift. I argue that it is better seen as a different way of expressing his longstanding view that legal theory is an inherently normative endeavor. Dworkin emphasizes that fact and value are separate domains, and one cannot ground claims of one sort in the other domain. On this view, legal philosophy can only answer questions from within either domain. We cannot ask metaphysical questions about which domain law ‘properly’ belongs in; these would be archimedean, and Dworkin has long argued against archimedeanism. The one-system view, then, is best understood as an invitation to join Dworkin in asking moral questions from within the domain of value. Finally, I argue that Dworkin’s view can be understood as a version of ‘eliminativism’, a growing trend in legal philosophy.

     

Caution ahead: teachers,vetting and the law

At the beginning of 2006 the media reported instances where people who had been convicted of sexual offences against children were permitted to work in schools. A list of unsuitable people (known as ‘List 99’) has existed for over 80 years and yet the system appears to have broken down. In this article I seek to examine some of the issues involved in the operation of List 99, including the suggestion that those who are cautioned for committing offences against children should equally be unable to work with children. A second article will then critically analyse the changes proposed by the government to the operation of List 99 and the vetting of those who wish to work with children.     

国家调节权:第四种权力形态

中国的改革已进入攻坚阶段,下一轮改革的关键是改政府。长期以来,我们的改革一直致力于"政企分开",即国家行政管理权与国家所有权分开,却将国家调节权长期混同在行政权之中。国家调节权与行政权有明显的区别,是一种独立于传统的立法权、行政权、司法权之外的第四种权力形态。实现"十一五规划"政府职责的科学化目标,将改革深入下去,必须进一步分权,将国家调节权从行政权中分离出来。     

Democratic consolidation and parliamentary reform in Russia, 1990–93

It is a commonly held view that the Russian parliament, created in the late period of perestroika, possessed powers and structures that were incongruous with the process of democratic consolidation.’ It is a mistake, however, to suggest that parliamentary deputies failed to appreciate the problems that hampered both the parliament's work and its relationship with executive organs. Many deputies in both the All Union and Russian assemblies were committed to the creation of a ‘professional parliament’, and numerous reforms were put forward to resolve what some deputies called the ‘crisis of parliamentarism’ in Russia. These reforms, proposed by democrats and conservatives alike, raise new questions about the aims and objectives of deputies in Russia's first post‐Soviet parliament. What did deputies understand by the notion of a ‘professional parliament'? In what form did deputies envisage the new system of government? Were the many, often competing, proposals for parliamentary reform conducive to the achievement of democratic consolidation in Russia? This article will attempt to answer these questions by examining the proposals for parliamentary reform in the Russian parliament between 1990 and 1993.     

Ignorance of the Criminal Law,and Duties to Avoid it

‘Ignorance of the law is no defence,’ so we are told from an early stage in our legal studies. Or, to be more accurate, ‘ignorance of the criminal law is no defence to a criminal charge.’ That appears to be the rule in this country, apart from a couple of well‐established exceptions and another possible one. I will argue that it is a preposterous doctrine, resting on insecure foundations within the criminal law and on questionable propositions about the political obligations of individuals and of the State. In developing these arguments, I will draw attention to the differing problems of ignorance of the criminal law in three broad areas – regulatory offences, serious crime, and offences of omission – with a view to suggesting that there is a great deal more that the State needs to do if the issue of ignorance of the criminal law is to be dealt with adequately and fairly. I begin by scrutinising the relevant rule of English criminal law and the justifications offered for it. I then go on to situate the ‘ignorance‐of‐law’ doctrine in the context of the principle of legality and the rule of law, those bastions of liberal criminal law theory. Part three then explores the three broad areas of the criminal law, and parts four and five carry the debate into the political obligations of individuals and of the State in these matters.     

The Service Conception: Just One Simple Question

It is crystal clear that the Service Conception includes at least three conditions, what I shall call: the ‘normal justification condition’, the ‘independence condition’ and the ‘dependence condition’. The overarching rationale of these conditions is that they ensure that authority is only justified when it provides the best means for the subject to conform to the reasons for action that she actually has. However, it is difficult to clarify whether Raz implicitly presupposes a fourth necessary condition. This condition might be called a ‘reliable belief condition’, that is, that the putative subject must reliably believe that the putative authority-agent satisfies the Service Conception (or more precisely, its other three conditions). In sum, the purpose of this paper is to pose Joseph Raz one simple question: is it a necessary condition of your Service Conception, that the subject believes that the authority-agent satisfies the Service Conception? As a matter of interpretation, different parts of Raz’s work appear to lead in entirely opposite directions: some parts clearly support the reliable belief condition, others do not. Regardless of Raz’s ultimate answer, however, the question reveals a broader inconsistency. Only if the Service Conception does include the belief condition will it support Raz’s claim that authority is consistent with one’s rational ‘self-reliance’, that is, acting upon one’s own judgement (including, as to who has authority). Only if the Service Conception does not include the belief condition will it support Raz’s perfectionist account of government. It seems Raz must choose between one or other.     

论社会行政法

社会公平正义是我国社会和政府职能的首要价值,构建社会行政法也成为发展我国行政法及其司法审查制度发展的主题。社会行政法的主要内容,是保障公民的社会权和其他公法受益权,规范行政机关行政给付和其他社会服务义务。公民的集体受益权、行政机关对社会公共事务的决策程序、相关群体的利益表达和参与机制,是社会行政法的核心范畴。     

Constitutional Fidelity and Extra-Legal Discretion: Justifying Executive Prerogative and Disobedient Disclosure

In this article, I defend the justifiability of both concealed uses of executive prerogative as consistent with the end of self-preservation for which government is constituted by the people and its disobedient disclosure as consistent with the rational interest of the citizens of the constitutional state in non-subordination. Indeed, I argue both prerogative and disclosure are justifiable, despite the latter clearly operating at cross-purposes with the former. I also contend that disobedient disclosure aligns more closely with the justificatory conditions of executive prerogative than more traditions forms of civil disobedience. My discussion is limited to the question of justification, highlighting the normative stakes of delegitimizing either mode of extra-legal discretionary judgment by executive or disclosers respectively.     

THE ROLE OF SOLICITORS IN DIVORCE PROCEEDINGS*

“I was walking down the boulevard one day with my sister who was down for a week's holiday. She said off the cuff ‘When are you going to get divorced?’ I said ‘I don't know.’ Seeing a solicitor's office, I said ‘ I'll pop in here’—just the job, just like going in the shop for a loaf of bread. So I sees the receptionist. She said ‘ I'll see if he can see you straight away.’ Well, he gave me an interview straight away. Within an hour everything was done. He told me to bring all the gen I could in a couple of weeks time, which I did and then we got on with the job.”     

Minimal Semantics and Legal Interpretation

In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semantic minimalism, while focusing on the idea of ‘liberal truth conditions’ developed by Emma Borg in her book ‘Minimal Semantics’. Secondly, I will provide an account of the three principal views in legal interpretation: intentionalism, textualism and purposivism. All of them are based on a common denominator labelled by lawyers ‘literal meaning’. In the paper I suggest a novel way of viewing this common denominator as almost identical to the Borgian ‘liberal truth conditions’, at least at a conceptual level. In the third section I will focus on the conceptual similarities between the two ideas. I intend to depict that, although legal theorists do not admit it explicitly, they treat literal legal meaning as minimal propositional content that can be ascribed liberal truth conditions. There are two main objections to liberal truth conditions: their under-determinacy and unintuitive character. Both objections can be applied to ‘literal meaning’. However, the idea of liberal truth conditions gives an adequate account of what lawyers call literal meaning and is helpful in explaining the mechanism of understanding of provisions and reasons leading to the necessity of statutory interpretation.     

The legal impact of Bologna implementation: exploring criticisms and critiques of the Bologna process

This paper reviews some of the critical assessments of the Bologna Process, notably by Neave and Amaral and Teichler. Other secondary material referred to includes Reinalda and Kulesza, Corbett and Greatrix. It is arguable that the Bologna Process is part of the generally over-bureaucratic and very costly context of European Union (EU) continent-wide activity, except one that (perhaps depressingly) involves a much larger range of nations than those which are formally members of the EU. I do here need to declare an interest in that I am what in the UK is call a ‘Eurosceptic’, perceiving the EU to be a grotesquely expensive, fraudulent and sclerotic entity that is in grave danger of its major original advantage (probably avoiding a third European civil war during the second half of the last century) being significantly outweighed by its growing disadvantage as now an over-interventionist and over-ambitious and under-competent example of ‘big government’.